HBA-CBW C.S.H.B. 587 77(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 587 By: Thompson Judicial Affairs 3/13/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Hate crimes are acts committed primarily because of the actor's bias or prejudice against the victim. Even though hate crimes are not always reported and some counties do not keep such statistics, according to the Texas Department of Public Safety report, "Crime in Texas 1997: The Texas Crime Report," the total number of hate crime incidents in 1997 was 331. These incidents involved 361 victims, 420 offenders, and resulted in a total of 360 offenses. The largest percentage of hate crimes were racially motivated in nature. C.S.H.B. 587 modifies provisions relating to the investigation and prosecution of an offense motivated by bias or prejudice, and provides for civil remedies and protection against certain hateful acts. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the criminal justice division of the governor's office in SECTION 2.01 (Article 104.005, Code of Criminal Procedure) of this bill. ANALYSIS C.S.H.B. 587 amends the Code of Criminal Procedure to require a judge to make an affirmative finding of fact and enter the finding in the judgment of the case if the judge or jury, whichever is the trier of fact, at the guilt or innocence phase of the trial determines beyond a reasonable doubt that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual orientation (SECTION 1.02, Art. 42.014). In addition to performing existing required duties, the bill requires a clerk of a district or county court in which an affirmative finding is requested to report that request to the Texas Judicial Council (TJC), along with a statement as to whether the request was granted by the court and, if so, whether the affirmative finding was entered in the judgment in the case. The bill requires the clerk to make the report not later than the 30th day after the date the judgment is entered in the case (SECTION 5.01, Art. 2.211). The bill amends the Government Code to include a summary of such information in the report that TJC is required to file with the governor and the Texas Supreme Court (SECTION 5.02, Sec. 71.034). The bill amends the Code of Criminal Procedure to authorize a person to request a protective order when a defendant appears at any proceeding in a constitutional county court, statutory county court, or district court that is related to an alleged offense that is committed against the person or the person's property because of bias or prejudice. The bill requires the court to render a protective order if, in lieu of the finding that family violence occurred and is likely to occur in the future, the court finds that probable cause exists to believe that an offense against the person or the person's property occurred because of the defendant's bias or prejudice and that the nature of the scheme or the defendant's course of conduct indicates that the defendant is likely to engage in the future in such conduct. The bill sets forth procedures for the enforcement of such a protective order and requires a law enforcement agency to enter information regarding the protective order into the Department of Public Safety statewide law enforcement information system not later than10 days after the receipt of the order from the clerk of the court (SECTION 4.01, Art. 6.08). The bill amends the Penal Code to set forth the conditions under which a person violates a protective order prohibiting an offense caused by bias or prejudice. The bill sets forth provisions with regard to prosecuting such an offense, prohibiting an arrest of a person protected by that order, and setting the offense category for violating the protective order (SECTION 4.02, Sec. 25.071). The bill amends the Code of Criminal Procedure to set forth provisions with regard to distributing grants for the extraordinary prosecuting costs for certain counties with a population of less than 125,000 associated with the investigation or prosecution of an offense alleged to have been committed because of bias or prejudice. The bill requires the criminal justice division of the governor's office (division) to distribute grants and authorizes the division to adopt a budget and rules for the making of grants (SECTION 2.01, Art. 104.005). C.S.H.B. 587 amends the Penal Code to provide that the enhanced penalties for an offense committed because of bias or prejudice do not apply to the trial of an offense of injury to a disabled individual if the affirmative finding in the case shows that the defendant intentionally selected the victim because the victim was disabled. The bill authorizes the attorney general, on the request of a prosecuting attorney, to assist the prosecuting attorney in the investigation or prosecution of an offense committed because of bias or prejudice. The bill requires the attorney general to designate one individual to assist in the prosecution of criminal cases to coordinate responses to such requests (SECTION 1.01, Sec. 12.47). C.S.H.B. 587 amends the Civil Practice and Remedies Code to establish that an individual in Texas has the right to be free from an act of violence, or intimidation by threat of violence, committed against the person or the individual's property because of the individual's race, color, disability, religion, national origin or ancestry, age, gender, or sexual orientation, or because another person perceives the individual to have one or more of the aforementioned characteristics (SECTION 3.01, Sec. 140.002). The bill authorizes an individual whose exercise or enjoyment of the right to be free from hateful acts by a person, by threat, intimidation, or coercion, or by an attempt to interfere by threat, intimidation, coercion to commence an action for damages, exemplary damages, and injunctive or other appropriate relief to protect the peaceable exercise or enjoyment of the right. The bill requires a court to award a claimant who prevails in an action reasonable attorney's fees incurred in bringing the action (SECTION 3.01, Sec. 140.003). The bill establishes that an action is independent of any other remedy or procedure that may be available to the claimant (SECTION 3.01, Sec. 140.009). The bill prohibits an action under provisions relating to remedies for and protections against hateful acts from being based solely on the content of the speech of the defendant unless it is shown that the speech itself threatens violence against a specific individual or group of individuals, the individual or group of individuals against whom the threat is directed reasonably fears that, because of the content of the speech, violence will be committed against the group or individual or the property of the individual or group, and the defendant threatening violence had the apparent ability to carry out the threat. The bill prohibits a court from issuing an order that restricts the content of any defendant's speech. The bill authorizes the court to issue an order that restricts the time, place, or manner of the defendant's speech only to the extent reasonably necessary to protect the peaceable exercise or enjoyment by an individual of the right to be free from hateful acts and consistent with the constitutional rights of the defendant (SECTION 3.01, Sec. 140.004). The bill authorizes an action to be brought in a district or county court (SECTION 3.01, Sec. 140.005). The bill provides that an order is enforceable by contempt, prosecution under provisions regarding a violation of an order enjoining hateful acts, or both (SECTION 3.01, Sec. 140.006). The bill provides that an order for temporary or permanent relief must include a warning statement and sets forth the statement (SECTION 3.01, Sec. 140.007). The bill requires a court that issues an order for temporary or permanent relief to order the claimant or the attorney for the claimant to deliver, or the clerk of the court to mail, two copies of the order before the end of the day on which the order was granted to specified entities and locations. A law enforcement agency that receives such an order is required to serve a copy on the defendant and provide to any law enforcement officer responding to the scene of a reported hateful act against the claimant information relating to the existence of terms of, and current status of the order. The bill requires the court to require a constable to serve an order issued under provisions regarding notification of law enforcement agencies (SECTION 3.01, Sec. 140.008). The bill amends the Penal Code to provide that a person commits an offense if, in violation of an order for temporary or permanent injunctive relief, the person knowingly violates the order. The bill sets forth the category of the offense for violating such an order (SECTION 3.02, Sec. 22.12). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B 587 differs from the original bill by substituting the term "sexual orientation" for the term "sexual preference." The substitute removes the provision relating to a determination of bias or prejudice at the punishment phase of the trial. The substitute removes the provision providing that the fact that a defendant incorrectly perceives a person to be a member of a group is immaterial to the determination of bias or prejudice, and removes the definition of "sexual preference" (SECTION 1.02, Sec. 42.014, Code of Criminal Procedure). The substitute adds provisions regarding content of speech, forum, enforcement, warning, notification and duties of law enforcement agencies with respect to civil remedies and protections against hateful acts (SECTION 3.01, Secs. 140.004 - 140.008, Civil Practice and Remedies Code). The substitute adds graffiti to a list of offenses for which a person may request a protective order and requires a protective order to be entered into the Department of Public Safety statewide law enforcement information system not later than the 10th day after receipt of the order from the clerk of the court (SECTION 4.01, Art. 6.08, Code of Criminal Procedure). The substitute adds graffiti to a list of offenses for which a person may be held in violation of a protective order (SECTION 4.02, Sec. 25.071, Penal Code). The substitute provides that a person commits an offense if the person knowingly violates an order for temporary or permanent injunctive relief and sets forth penalties for such an offense (SECTION 3.02, Sec. 22.12, Penal Code). The substitute modifies provisions regarding grants available to smaller counties for extraordinary prosecution costs to provide that such counties are eligible to apply for a grant for expenses relating to the investigation or prosecution of any offense, rather than capital murder, under certain conditions (SECTION 2.01, Art. 104.005, Code of Criminal Procedure). The substitute differs from the original bill by providing that an individual has the right to be free from intimidation by threat of violence. The substitute removes the definition of "sexual preference" and removes "status as a pregnant person" from the list of characteristics for which a person has the right to be free from hateful acts (SECTION 3.01, Sec. 140.002, Civil Practice and Remedies Code).